BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                               AB 1098
                                                               Page  1

       Date of Hearing:   April 23, 2013

          ASSEMBLY COMMITTEE ON JOBS, ECONOMIC DEVELOPMENT AND THE ECONOMY
                                 Jose Medina, Chair
                 AB 1098 (Quirk-Silva) - As Amended:  March 21, 2013
        
       SUBJECT  :   Office of Small Business Advocate: regulations: report

       SUMMARY  :    Requires the Office of the Small Business Advocate (OSBA)  
       to commission a study regarding the costs of state regulations on  
       small businesses, as specified.   Specifically,  this bill  :   

       1)Makes findings and declarations that, among other things, the  
         federal Small Business Administration (SBA) has been studying the  
         cost of regulations on small businesses since 1995, in 2010 the  
         annual cost of federal regulations in the U.S. was $1.75 trillion,  
         the cost of regulations to businesses with less than 20 employees  
         was $10,585, and the financial burden on small businesses is more  
         burdensome than for large businesses.

       2)Requires the state Small Business Advocate to commission a study on  
         the cost of state regulations on small businesses.  The study is  
         required to do the following:

          a)   Parallel, to the extent feasible and practical, the study  
            conducted by the federal SBA.

          b)   Examine successful models from other states, identify  
            regulatory costs and develop potential alternative approaches to  
            meeting the same regulatory objectives with less burden to small  
            businesses.

       3)Requires the Small Business Advocate to convene a small business  
         stakeholder committee to provide advice on the study, as specified.

       4)Requires the study to be completed by January 1, 2015 and updated  
         every five years.

        EXISTING LAW  :

       1)Finds and declares that it is in the public interest to aid,  
         counsel, assist, and protect the interests of small business  
         concerns in order to maintain a healthy state economy.

       2)Establishes the OSBA within the Governor's Office of Business and  








                                                               AB 1098
                                                               Page  2

         Economic Development for the purpose of advocating for small  
         businesses including responding to complaints from small businesses  
         concerning the actions of state agencies and the operative effects  
         of state laws and regulations.

       3)Finds and declares that there has been an unprecedented growth in  
         the number of administrative regulations in recent years and that  
         correcting the problems requires the direct involvement of the  
         Legislature, as well as the executive branch of state government.   
         Further, statute finds and declares that the complexity and lack of  
         clarity in many regulations put small businesses, which do not have  
         the resources to hire experts to assist them, at a distinct  
         disadvantage.

        FISCAL EFFECT  :   Unknown

        COMMENTS  :    

        1)Framing the Policy Issue  :  This measure calls for an update to the  
         state study on the costs of state regulations on small businesses.   
         In hearings on the California economy held by the Assembly Committee  
         on Jobs, Economic Development, and the Economy (JEDE) businesses  
         have repeatedly testified that California's regulatory process is  
         expensive, overly burdensome, and that compliance has not  
         necessarily provided a better quality of life for the people of  
         California.  

         In making the case for a current study, Members may want to consider  
         that the federal SBA has conducted similar studies for the past  
         years, yielding important information that can guide better  
         contracting and regulatory policies.  This analysis provides  
         information on the role of small businesses within the California  
         economy, previous federal and state studies, the state and federal  
         rule-making processes, and related legislation.  Suggested  
         amendments are discussed in comment 5. 

        2)The role of Small Business within the California Economy  :  Business  
         owners, with no employees make up the single largest component of  
         businesses in California, 2.8 million out of an estimated 3.5  
         million firms in 2010.  As these businesses grow, they continue to  
         serve as an important component of California's dynamic $1.9  
         trillion economy.  Microenterprises, meaning businesses with less  
         than five employees represent approximately 93% of all businesses in  
         the state, or approximately 3.2 million of all businesses.   
         Businesses with 99 or less employees comprise nearly 98% of all  








                                                               AB 1098
                                                               Page  3

         businesses and employee approximately 38% of all workers. 

         These non-employer and small employer firms create jobs, generate  
         taxes, and revitalize communities. 
         In hard economic times, smaller size businesses often function as  
         economic engines.  In this most recent recession this trend  
         continued, with the number of nonemployer firms increasing from 2.6  
         million firms ($137 billion in revenues) for 2008 to 2.8 million  
         firms ($138 billion in revenues) for 2010.  In the post-recession  
         economy, these businesses are expected to become increasingly  
         important due to their ability to be more flexible and better suited  
         to meet niche market needs.  

         However, their small size also results in certain challenges in  
         meeting regulatory requirements.  A larger size business may have  
         the option of assigning one or more persons to learn about new  
         regulations, attend special classes to obtain certifications, and  
         pull together required paper work.  Small businesses, however, are  
         more dependent on contracting for these specialized services,  
         learning about new requirements from trade association newsletters,  
         and sometimes getting fined because they were just not aware of a  
         new rule.  Understanding how regulations financially affect small  
         businesses is an important component of understanding the California  
         economy.

        3)Small business studies  :  There are two major sources of data on the  
         cost of regulatory compliance on businesses, the federal SBA and the  
         state OSBA.  For the last 10 years, the federal SBA has conducted a  
         peer reviewed study that analyzes the cost of federal government  
         regulations on different sizes of businesses.  This research shows  
         that small businesses continue to bear a disproportionate share of  
         the federal regulatory burden.  On a per employee basis for firms  
         with less than 20 employees, it costs about $10,585, or 36%, more  
         for small firms to comply with federal regulations than their larger  
         counterparts.   

         In the federal peer reviewed study, the most costly regulations for  
         small businesses were found to be environmental compliance where  
         small business costs were 364% higher than in large-size firms.  The  
         regulatory category with the least disproportionate cost impact  
         between large and small businesses related to occupational safety  
         and health and homeland security. 

         The impact of California regulations on small businesses was unknown  
         until 2009, when the study required by AB 2330 (Arambula), Chapter  








                                                               AB 1098
                                                               Page  4

         232, Statutes of 2006, was published by the OSBA.  Although state  
         agencies have been required to consider the costs of adopted  
         regulations on the California economy, in general, and on small  
         business specifically, state agencies have historically failed to  
         meaningfully undertake such an analysis, and instead, have indicated  
         that the need for the regulation was an overriding state concern.  

         This first state study found that total cost of regulations to the  
         State of California was $493 billion.  Since small businesses  
         constitute 99.2 % of all employer businesses in California and all  
         of non-employer business, the regulatory cost, according to the  
         report, is shouldered substantially by small business (averaging  
         $134,123.00 per small business in 2007). 

        4)Adoption of regulations in by federal and state governments  :   
         Existing federal and state laws sets forth extensive processes for  
         the development and adoption of regulations, including requiring the  
         identification of potential adverse impacts on businesses and  
         individuals.  

         California law specifically states that the purpose of the  
         rulemaking process is to avoid the imposition of unreasonable and  
         unnecessary regulations, reporting, recordkeeping, or compliance  
         requirements.  Businesses, however, have repeatedly testified before  
         this policy committee that they believe that California's regulatory  
         process is expensive and overly burdensome.  One of the criticisms  
         of the process has been that the Office of Administrative Law has no  
         real authority to ensure that the intent of the law is enforced  
         because its oversight is limited to a procedural review.  Other  
         criticisms have included that regulations are developed without  
         adequate regard to their cumulative impact or challenges faced by  
         small versus large companies.   

         In contrast, federal rule-making is monitored by the Federal Office  
         of Advocacy (FAO) within the SBA for the purpose of protecting,  
         strengthening and effectively representing the nation's small  
         businesses within the federal government's legislative and  
         rule-making processes.  Among its duties, the FAO is an official  
         watchdog for the Regulatory Flexibility Act and reviews federal  
         regulations and makes recommendations on how to reduce the burden on  
         small firms and maximize the benefits small businesses can receive  
         from the federal government.  California's OSBA is not staffed nor  
         statutorily dedicated to this level of regulatory engagement.  

         In 2012, the FAO issued 29 letters to federal agencies on a range of  








                                                               AB 1098
                                                               Page  5

         rulemaking problems including, but not limited, to the National  
         Toxicology Program, Board of Scientific Counselors; The Truth in  
         Lending Proposed Rule, the U.S. Treasury; and the Repair Stations  
         Rule, Federal Aviation Administration.  According to the SBA, the  
         FAO's work with agencies to reduce the potential regulatory burden  
         saved small firms more than $2.4 billion in new regulatory costs.

         In January 2011, President Obama signed Executive Order 13563 (EO)  
         for the purpose of further improving regulation and regulatory  
         review.  Among other factors, the EO stated that the federal  
         regulatory system must adopt regulations that impose the least  
         burden on society, while still achieving policy objectives;  
         developing rules through an open exchange of perspectives from  
         affected stakeholders in the private sector (among others); and  
         promoting the use of retrospective analysis on impacts of previously  
         adopted regulations.  

         In California, there is no "watchdog" agency and a rulemaking entity  
         is not required to construct alternatives or independently seek  
         small business recommendations.  State legislation designed to level  
         the playing field has been repeatedly held at various points in the  
         legislative process.  Several of these bills are described under  
         "Related  Legislation."
        
       5)Technical amendments  :  The author may want to consider:

          a)   Defining small business and asking for data on a range of  
            small business sizes including nonemployer businesses, business  
            with five or fewer  employees, 99 or fewer employees and under  
            500 (federal definition).
          b)   Specifying that the recommendations not diminish wage and  
            hour, social insurance, or health and safety protections for  
            California workers.
          c)   Changing the submittal of a report to the posting of the  
            information on the OSBA's website and the provision of notice to  
            the Legislature.
          d)   Requiring that the completion of the report be dependent upon  
            GO-Biz receiving private funding. 

        6)Related Legislation  :  Below is a list of related legislation.
        
          a)   AB 1037 (V. Manuel Pérez) Small Business Regulatory Reform  :   
            This bill would have removed statutory barriers that inhibit the  
            full consideration of the impacts of state rules and regulations  
            on the economy, including the small business sector, and requires  








                                                               AB 1098
                                                               Page  6

            a review of all regulations on small businesses after five years  
            to identify opportunities to mitigate negative impacts.  Status:   
            Held on the Suspense File of the Assembly Committee on  
            Appropriations in 2011.
        
          b)   AB 1409 (V. Manuel Pérez) Small Business Regulation Reforms :   
            This bill would have modified the state rulemaking process to  
            require state agencies to consider alternative small business  
            compliance mechanisms.  Rulemaking agencies would also have been  
            required to consider whether there are opportunities to  
            coordinate or harmonize compliance activities with other state  
            entities with similar or related rules.  Further, the bill  
            encouraged the Small Business Advocate to solicit comments from  
            small businesses on proposed regulations and make recommendations  
            on reasonable alternatives as part of the rulemaking process.   
             Status  :  Held in the Senate Committee on Rules in 2012.  

           c)   AB 2330 (Arambula) Small Business Regulation Study  :  This bill  
            required the OSBA to commission a study on the costs of state  
            regulations on small businesses.  Status:  Signed by the  
            Governor, Chapter 232, Statutes of 2006.

           d)   AB 2692 (Tran and V. Manuel Pérez) Small Business Reforms  :   
            This bill would have directed the California Small Business Board  
            (Board) to focus for the next two years on, among other items,  
            the impact of licensing and permitting regulations on small  
            business startups.  Status:  Held on the Suspense File by the  
            Assembly Appropriation Committee in May 2010.

           e)   SB 356 (Wright) Impact of Regulations on Small Businesses  :   
            This bill would have required an agency considering the adoption  
            of a regulation to consult with those persons and businesses  
            potentially affected and would delete the condition that the  
            agency only involves those parties, if the proposal is large or  
            complex.  Status:  Passed the Assembly Committee on Business  
            Professions and Consumer Protection and was referred to the  
            Assembly Committee on Rules where it remained until the close of  
            the 2009-10 Legislative Session.
        
       REGISTERED SUPPORT / OPPOSITION  :   

        Support 
        
       California Small Business Association (sponsor)









                                                               AB 1098
                                                               Page  7

        Opposition 
        
       None received 
        

       Analysis Prepared by  :    Toni Symonds / J., E.D. & E. / (916) 319-2090